Posts Tagged ‘ADR’

The mediation field now has more information in our push to unlock the black box of mediation. A recent study by James Wall and Kenneth Kressl examined the conscious and unconscious thought processes of ten civil case mediators. Their findings do more to confirm what many have long assumed, rather than provide new insights, but they are no less informative because of that. As they discuss in “Mediator Thinking in Civil Cases” (Conflict Resolution Quarterly, Spring 2017), the mediators focused on settlement as well as client satisfaction and obtaining repeat business. Unconsciously, they were biased against emotions being brought into the mediation and saw the dispute as one in which the parties would have to compromise on monetary value.

The study involved 20 observations, two for each of the ten mediators. Nine of the mediators were male; nine were white. When setting up the study, Wall and Kressl made three assumptions:

Mediators have goals and pursue them.

Mediator thinking operates on two levels – unconscious (system 1) and conscious (system 2). System 1 thinking is emotional and based on personal biases, while system 2 thinking is rational.

Mediators engage in mental mapping when adopting goals and pursuing them. Mental mapping involves figuring out what to do and at what point in the mediation in order to achieve their goals.

They used these assumptions to frame their observations. Prior to each mediation, the observer met with the mediator for about 30 minutes and asked, “What are you thinking?” The observer then asked the same question after introductions and after the joint opening session. Once the parties were separated (in each mediation, there was only one joint session), the observer asked the mediator what he was thinking as they walked from one caucus room to the other. After mediation, the observer interviewed the mediator for about 45 minutes.

Conscious Thinking

On the conscious level, Wall and Kressl found that the mediators all had two outcome goals, which they pursued in mediation. These were achieving a settlement and having the clients leave satisfied. Additionally, most of the mediators were interested in obtaining repeat business. The mediators’ operational goals were also universal: lower the clients’ aspirations, keep parties flexible and maintain client control. Interestingly, they all looked to the attorneys to control their clients.

Most of the mediators created mental maps of how they would achieve their goals, although the level of mental mapping varied greatly among them. Mental mapping in general starts with pre-planning – getting relevant information before the mediation starts in order to get an idea of where the case might settle. During mediation, the mediators might take verbal and non-verbal cues into consideration while continuously determining when and how settlement will be achieved, and at what dollar amount. For me, the most surprising finding of the study was that some experienced mediators engage very little in mental mapping. The common factor for the three mediators in the study who used only slight mental mapping was their focus on their own role and actions rather than on those of the parties.

Wall and Kressl found that as part of their mental mapping, the mediators considered how much to press the parties and what the pace of the mediation should be. On both factors, there was considerable variation between mediators. Pressing, defined in the study as “pointing out the weaknesses in the client’s case; noting the strengths of the opponent’s case; and emphasizing the risks, pain, uncertainty, and costs of trial” was used very little by three of the mediators and three used it extensively as a method of control, dominance and pace-quickening.

Unconscious Thinking

Wall and Kressl divided unconscious thinking between prior to mediation and during mediation. Prior to mediation, mediators unconsciously frame the negotiation situation as distributive. That is, they believe that mediation is about getting the parties to make monetary concessions in order to reach agreement. They also believed that mediation should be low conflict and that any mediated settlement was better than trial. The mediators also saw emotions as problematic and to be avoided in mediation.

During mediation, the mediators made quick judgments about the parties and the probability of settlement. Universally, this judgment was negative for insurance adjusters (although the adjuster was only present in five cases). Also noted was that the mediators were “creatures of habit”. All but one conducted the mediation the same no matter the situation. (This was confirmed for five of the mediators, who had been observed for multiple mediations a decade before.) Wall and Kressl noted that the mediators had on average a 70% settlement rate, which might have led the mediators to confirm that their mediation style worked well.

Although the study only included ten mediators, Wall and Kressl saw patterns in their approach to mediation, leading them to put the mediators into three distinct groups:

Reflective Persuaders: these were high mental mappers who were moderate on pressing and extracting offers.

Pressers: these were high on pressing and extracting offers, moderate on what the pace of mediation should be and moderate on mental mapping.

Laissez-faires: these were low on pressing and extracting offers, moderate on repeat business and having pleased clients and moderate on the pace of mediation. They made mental maps but were hands off.

This study suffers from a small and homogeneous sample, so it is not readily generalized to the general population of mediators. Another issue is that the cases were very heterogeneous; differences in case types, dollar amounts and representation may have had an impact on how mediators approached their cases. Nonetheless, the study is significant in that it provides insights into mediators’ unconscious biases. This information can be used to uncover the influence of unconscious thinking on mediator behavior and the path that mediation takes.

For a while in the evolution of the ADR field, when two neutrals met they would sometimes ask what the other’s “profession of origin” was. What they meant was, “what did you do before you were a mediator?” There were some unspoken questions packed in there, too. They wanted to know, are you a full-time neutral or are you really from some other profession and trying to break into this one? And mostly I think they wanted to know, are you like me? Are you a lawyer, a therapist…?

I haven’t heard this question much recently. Maybe that is partly because ADR really is sinking into our society. Kids are mediating on playgrounds and deciding in college that they want to be mediators. Young adults are getting Masters Degrees in conflict resolution and looking to change the world. More people see mediation as their first career of choice, not the one they move to when they are tired of their original plan.

Even as conflict resolution increasingly becomes part of our everyday life, I would like to pay homage to a profession of origin that seems to be lost in the haze of ADR history. Thank you to the mediators and arbitrators who came from the labor relations field. (more…)

The story of the Detroit bankruptcy mediation’s emerging “Grand Bargain” (as it has been dubbed in the media) is a fascinating case of many different groups working to protect their chosen interests. The bargain demonstrates how mediation allows parties to consider what they are willing to give in order to secure the things that matter most to them, and how traditional rivals may collaborate for a shared goal. Where litigation must have winners and losers, the proposed mediated bargain seeks to avoid that. Instead, it involves a complex balancing act in which many parties give a little to get a little — if “a little” is the right way to describe the potential movement of hundreds of millions of dollars. (more…)

The field of Alternative Dispute Resolution lost one of our founders this weekend when Dick Salem died. Dick’s core values led him to work in dispute resolution before it was a field. While serving with the U.S. government’s Community Relations Service in the 1960s and 70s, he was mediator at Wounded Knee and when Nazis wanted to march in Skokie, Illinois. Later, he worked extensively in South Africa and then other African countries, most notably Rwanda.

Dick also worked in the Chicago area, which is where I met him back in the 80s. Wherever ADR was the topic, Dick was there. He served on the board of Neighborhood Justice of Chicago (now the Center for Conflict Resolution) when I was executive director and we served together on the board of the Chicago chapter of the Society of Professionals in Dispute Resolution (now the Association for Conflict Resolution.) (more…)